Citation Nr: 0209580
Decision Date: 08/09/02 Archive Date: 08/21/02
DOCKET NO. 92-04 590 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for a back disability.
REPRESENTATION
Appellant represented by: Theodore C. Jarvi, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant, his spouse and a friend
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran had active military service from January 1950 to
September 1953.
The veteran was originally denied service connection for a
back disability in an April 1954 rating action. The present
appeal arose following a February 1991 rating action which
denied the veteran's attempt to reopen that claim. The case
was subsequently forwarded to the Board of Veterans' Appeals
(Board) in Washington, DC., and in June 1993, the Board
remanded the matter to the Department of Veterans Affairs
(VA) regional office (RO) handling his case for additional
development. The claim was eventually returned to the Board
and in a July 1998 decision, the Board denied the veteran's
claim.
The veteran appealed the Board's decision to the Court of
Appeals for Veterans Claims, (Veterans Claims Court) and in
an August 1999 memorandum decision, the Court vacated the
Board's decision, and remanded the matter to the Board for
further proceedings. Owing to procedural complications
arising out of a separate appeal made by the veteran to the
United States Court of Appeals for the Federal Circuit,
(Federal Circuit), the Veterans Claims Court did not issue
its jurisdiction conferring mandate to the Board with respect
to its August 1999 decision, until March 2000. Thereafter, a
number of requests for extensions of time were granted by the
Board for the veteran to submit additional evidence, and it
was not until December 2000, that the Board again addressed
the claim itself. At that time, it was determined that even
further development was warranted, and the case was remanded
by the Board to the RO. It has since been returned to the
Board from the RO.
In addition to the foregoing, it is observed that the
veteran's original appeal to the Board in 1993 included the
issue of entitlement to service connection for headaches.
Although that issue followed a somewhat complicated
procedural course since then, including appeals to the
Veterans Claims Court and the Federal Circuit, the claim was
ultimately granted in a March 2002 Decision Review Officer
Decision. Accordingly, it is no longer before the Board.
There is also some confusion in the record as to whether the
veteran seeks to establish entitlement to service connection
for a cervical spine disability. In this regard, it is
observed that in the March 2002 Decision Review Officer
Decision, "impairment of the neck" was included among the
list of disabilities for which service connection was not in
order. At the same time, however, an impairment to the neck
was not identified as one of the issues being considered in
that decision, and no meaningful rationale was provided to
support a conclusion that service connection for an
"impairment of the neck" was not warranted. In view of
this, it would be inappropriate to construe that March 2002
decision as including the disposition of a claim for
entitlement to service connection for a cervical spine
disability. Accordingly, the issue of entitlement to a
cervical spine disability is referred to the RO for
clarification as to whether the veteran actually desires to
pursue such a claim, and, if he does, so that a formal
decision on that issue may be entered.
FINDINGS OF FACT
1. The veteran was previously denied service connection for
a back disability in an April 1954 rating action.
2. At the time of the April 1954 rating action, the
veteran's service medical records revealed that the veteran
was hospitalized for a period of 46 days following an
automobile accident and a number of subsequent complaints of
back pain.
3. When examined for VA purposes in March 1954, the veteran
complained of back pain, but "old trauma back [was] not
found."
4. Evidence added to the record since 1954 includes a
September 1994 VA examination report suggesting that the
veteran's current degenerative joint disease of the spine was
caused by injuries he sustained in his in-service automobile
accident.
5. The evidence added to the record since the 1954 rating
action that denied service connection for back disability
bears directly and substantially upon the specific matter
under consideration and in connection with evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of that
claim.
CONCLUSION OF LAW
Evidence received since the April 1954 denial by the RO of
entitlement to service connection for a back disability is
new and material, and the claim for service connection for a
back disability is reopened. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5108, 5126, 7105 (West 1991 and
Supp. 2001); 38 C.F.R. §§ 3.303, 3.156 (2001), 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a)) (West 1991 & Supp.
2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection will be granted for disability resulting
from injury or disease incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303. Service connection may be granted for any disease
diagnosed after discharge when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
The record reflects that the veteran submitted his original
application for VA benefits in 1953. Among the disabilities
for which he sought benefits was "injured back." In
connection with this claim, the RO reviewed the veteran's
service medical records, and the veteran was examined for VA
purposes in March 1954. Among other things, the veteran's
service medical records showed that he was involved in an
automobile accident in March 1951, after which he was
hospitalized for a period of 46 days. Following this
hospitalization, the records show that the veteran was seen
on a number of occasions for back complaints, and that he
apparently had back pain at the time he was examined in
connection with his discharge from service in August 1953.
These service records, however, did not appear to have linked
the veteran's back pain to any particular event. The report
of the examination conducted for VA purposes in March 1954
reveals that while the veteran complained of back pain at
that time, the examiner concluded that "old trauma back
[was] not found."
On the foregoing record, the veteran was denied service
connection for residuals of a back injury in an April 1954
rating action. He was informed of this decision and of his
appellate rights in a letter addressed to him in April 1954.
He did not appeal this action and it became final. See 38
U.S.C. § 709; Veterans Regulation No. 2(a), Part II, Par.
III; Regulations and Procedures (R &PR) 1074, in effect at
that time.
The veteran did not attempt to reopen his claim until 36
years had passed, at which time he submitted an informal
application for benefits received at the RO in April 1990.
This claim was subsequently denied, and it is from this
decision that the current appeal arises.
Under applicable criteria, claims that are the subject of a
prior final denial may be reopened if new and material
evidence is received with respect to them. If the claim is
thus reopened, it will be reviewed on a de novo basis, with
consideration given to all the evidence of record.
38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet.App. 273
(1996). For claims received prior to August 29, 2001, as is
the case here, new and material evidence means evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
(For claims filed on and after August 29, 2001, new and
material evidence is defined as set out at 66 Fed. Reg.
45620, 45630 (Aug. 29, 2001) to be codified at 38 C.F.R.
§ 3.156. Since the matter currently before the Board was
initiated in November 1999, however, the pre-August 29, 2001
definition of new and material evidence must be used.)
The evidence that is considered to determine whether new and
material evidence has been received is the evidence received
since the last final disallowance of the veteran's claim on
any basis. Evans v. Brown, 9 Vet.App. 273 (1996). This
evidence is presumed credible for the purposes of reopening
the veteran's claim, unless it is inherently false or untrue
or, if it is in the nature of a statement or other assertion,
it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v.
Principi, 3 Vet.App. 510 (1992). See also Robinette v.
Brown, 8 Vet.App. 69 (1995).
The evidence associated with the claims file since the 1990
claim to reopen has become rather voluminous. In addition,
some of it may be fairly read as weighing against the
veteran's claim. At this stage of the claim, however, it is
not the function of the Board to begin to weigh all the
evidence to ascertain whether it preponderates for or against
the claim of the veteran's entitlement to service connection,
or whether it is in relative equipoise on that question.
Rather, the Board must simply determine whether any of the
evidence obtained since the final prior denial meets the
definition of that which is new and material. If any
evidence is new and material, the claim is reopened, and the
underlying claim for service connection may be addressed with
consideration given to all the evidence of record.
Among the medical documents obtained in connection with the
veteran's current appeal is the report of a spine examination
conducted for VA purposes in September 1994. This report
concludes with the following diagnostic impression:
1. Residuals, back and head injuries secondary to
motor vehicle accident in 1951.
2. Degenerative joint disease of the spine
secondary to diagnosis #1.
Given that the basis for the original denial of the veteran's
claim was essentially the absence of a medical finding of any
residual of an old back trauma, the conclusion by this 1994
VA examiner that the veteran had degenerative joint disease
secondary to a 1951 trauma must be considered to bear
directly and substantially upon the specific matter under
consideration and of such significance that it must be
considered together with all the evidence to fairly decide
the merits of the veteran's claim. Accordingly, the Board
concludes that the veteran has submitted evidence that is new
and material, and the claim for service connection for a back
disability is reopened.
Although the record contains sufficient evidence to reopen
the veteran's claim for service connection for a back
disability, the Board has determined that further development
is required before proceeding to consider the merits of the
underlying claim. Accordingly, the Board is undertaking
additional development pursuant to authority granted by 67
Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38
C.F.R. § 19.9(a)(2)). When it is completed, the Board will
provide notice of the development as required by Rule of
Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to
be codified at 38 C.F.R. § 20.903.) After giving the notice
and reviewing any response to the notice, the Board will
prepare a separate decision addressing this matter.
ORDER
To the extent that it has been determined new and material
evidence was submitted to reopen the claim for service
connection for a back disability, the appeal is granted.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.